Determining who should inherit your assets is a surprisingly difficult task for many of us. However, with time and due consideration, an answer comes. Now you are ready to tell the world who should inherit your assets and who should not get anything. This seems relatively straightforward. However, things often are not as simple as they superficially appear.
Mary Bartels drafted a will in 1977 in which she left a sewing machine, photographs, and a china cup to her daughter. For her own personal reasons, she provided in the will that “it is my express intent that these items be the total of the benefits left to my daughter, Deborah Smith, and she shall be specifically excluded from any other benefits of my estate.” She left the remainder of the estate to her husband. Will Deborah get anything other than those three items? You would think not – but read on. This became the subject of litigation that became an appellate court case in Oregon.
Mary’s husband predeceased her. Mary’s will had provided the remainder should go to him. However, he was no longer alive at Mary’s death. So, who should get his share? His estate? His relatives? Mary’s relatives other than Deborah? Deborah? In most states, if a beneficiary is not alive the gift lapses and does not go to that beneficiary’s descendants. Instead, it would pass under Mary’s will. However, her will was silent on the issue. So, the court decided it must pass to Mary’s heirs at law. Of course, Mary’s daughter, Deborah, was her closest heir. Mary had specifically disinherited her. Mary had a brother, Daniel Hardy, who was her next closest heir. However, the court held that the assets should go to Deborah, notwithstanding the fact that Mary had disinherited her. The court reasoned that Mary had disinherited Mary under the assumption that her husband would survive her.
So, even though Mary had expressly stated that she wanted nothing else to go to Deborah, the court decided otherwise. Why? Mary’s will was ambiguous. Mary’s will should have spelled out what should happen if Mary’s husband did not survive her.
Another example of ambiguity in a will is leaving your assets simply to your “descendants.” Let’s say you have one son and two grandchildren from a deceased daughter. Who should receive the assets? Should the son receive them all? Should the son and the grandchildren each get a one-third share? In most states, if you provide that the assets go to your “descendants per capita” that would indicate that the assets should go one-third to each. Conversely, in most states, if you provide that the assets go to your “descendants per stirpes” that would indicate that your son would get one-half and your two grandchildren would split the share of their deceased mother (your daughter).
What may seem clear to the novice often proves to be ambiguous upon closer scrutiny? A qualified estate planning attorney can help you draft your estate planning documents so that they convey your wishes clearly and unambiguously.
Mr. Ronald “Chip” Morrison, Jr. is a Board-Certified Specialist in Estate Planning and Administration by the Louisiana Board of Legal Specialization and a member of the American Academy of Estate Planning Attorneys. With experience in both simple and complex estate matters, he can prepare an estate plan for you that achieves your goals of passing your assets to whom you wish and make sure that your selection of guardians for your children is heard by the court. The planning can even help minimize estate taxes. To learn more about how you can achieve your estate planning goals, please call our office at (504) 831-2348 or contact us through our website.